NYPD's stop-and-frisk program dead?

In New York City's Stop-And-Frisk Appeals Are Still Alive—appearing on Brooklyn Law School's Jounral of Law & Policy website Practicum—Professor Katherine Macfarlane argues that it's not. According to Professor Macfarlane, the program could be preserved because the plaintiffs in the Ligon and Floyd cases lacked standing under precedent established by the Supreme Court in City of Los Angeles v. Lyons. Further, she claims that by ignoring Lyons the plaintiffs forwent a valuable opportunity to present a higher court with an opportunity to limit the restrictions of that precedent.

Here's the Introduction:

Will Judge Scheindlin’s decision that the NYPD’s stop-and-frisk practices are unconstitutional stand?  Everyone seems to think so.  On November 22, 2013, the Second Circuit denied the City of New York’s motion to vacate two decisions that ordered fundamental changes to the NYPD’s stop-and-frisk practices: the February 14, 2013 decision in Ligon v. City of New York, and the August 12, 2013 decision in Floyd v. City of New York.  The blow inflicted by the October 31, 2013 removal of Judge Scheindlin from Floyd and Ligon (due to a purported appearance of partiality) now seems irrelevant.  Mayor-elect Bill De Blasio, who takes office on January 1, 2014, has signaled that he will direct the City attorneys charged with appealing and overturning the stop-and-frisk orders to go no further.  The appeals will be set for argument after March 14, 2014, so if De Blasio follows through, the City’s appeal arguments will be mooted.  The Bloomberg administration will never get to defend its stop-and-frisk practices, Judge Scheindlin’s sweeping injunctions will stand, and the plaintiffs’ cause will be vindicated. But this outcome is by no means inevitable.  

 

The strongest argument in the City’s arsenal is one that it has yet to use: that the stop-and-frisk plaintiffs may lack standing to request the relief the court ordered.  The Second Circuit denied the City’s motions to vacate the orders granting vast injunctive relief “without prejudice,” so more motions may be filed. Moreover, though the City filed its opening briefs in Floyd and Ligon on December 10, 2013 and made no mention of the plaintiffs’ potential lack of standing, standing arguments are never waived. As a result, standing may keep the appeals alive, and stop-and-frisk practices in New York may remain untouched.

 

Is this the right outcome? Most stop-and-frisk opponents would object. But if City of Los Angeles v. Lyons is properly applied, the inevitable outcome is that the plaintiffs lack standing. In civil rights cases, the logic supporting a plaintiff-friendly outcome must be inscrutable because the rights at stake are so important. If federal court opinions that uphold or expand civil rights are based on faulty logic, not only will the opinions be attacked, the rights themselves will also come under fire. Because Lyons is still good law, the way to overcome it was to acknowledge that Lyons is binding, and then explain how to overcome its holding with a new theory of justiciability, which would then pave the way for a higher court to undo Lyons’ mistakes. Analytical shortcuts and misrepresentations, however, result in unjustifiable standing rulings, and hand the civil rights-unfriendly Supreme Court yet another case through which to further narrow civil rights remedies.

CRL&P related posts:

• SDNY amends related-case rule to increase transparency over case assignments
• UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law